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In the ACLU's lawsuit against the government, they claim what Glenn Greenwald, Edward Snowden, and most privacy advocates claim: That mass collection of metadata amounts to a violation of the 4th Amendment's ban on "unreasonable search and seizure."

So far one federal judge has agreed, while another has disagreed. To me, it's the most interesting and least-appreciated part of the case, and my hunch is that when everything is said and done, even if the NSA's programs are ratcheted back, it won't be because of the 4th Amendment.

Privacy fans want to focus on the collection of data rather than the searching of data for very practical reasons: It's what they have. The Snowden documents reveal a ton about how data is collected, and very little about how and when it is accessed. That's a problem for the case: it's pretty easy to see how an actual NSA agent searching through your phone records could be a violation of the 4th Amendment. But the mere act of collection is a much murkier area.

When the 4th Amendment was designed, there was no difference between a "search" and the collection of information. And there was no difference between "seizure" and "acquisition." But in an age of automated data collection, when is it a "search?" Presumably, nobody has been searched unless a person looks at the data. And can you call the acquisition of data "seizure" if nothing has in fact been removed, but merely copied?

Those questions are way less exciting than yelling about how "they" now "know" "everything." But they're also the real questions.